Balanced Jurist at Home in the Middle

By NEIL A. LEWIS,

Published: June 27, 1993

WASHINGTON, June 26—
hen advocates for the homeless pitched nine tents in Lafayette Park across from the White House in 1981, they also set up a complicated constitutional question involving free speech and government regulation.

By the time the issue was resolved, it provided a clear demonstration of the resolutely centrist judicial style of Ruth Bader Ginsburg -- then a judge on the United States Court of Appeals for the District of Columbia Circuit, now President Clinton's nominee for the Supreme Court.

The protesters planned to sleep in the tent city (which they called "Reaganville" in an effort to embarrass the President) to demonstrate the nation's shortage of housing. The Government argued that the protesters could not sleep in the tents because park regulations prohibited camping.

The appeals court ruled 6 to 5 in favor of the protesters, with Judge Ginsburg providing the swing vote: she went along with the decision but refused to join her liberal colleagues in a sweeping statement about free speech. Where on the Spectrum?

The Supreme Court swiftly reversed that decision, ruling 7 to 2 that the sleeping prohibition was a reasonable regulation that did not infringe on free speech. The two dissenters, Justices William J. Brennan Jr. and Thurgood Marshall, argued that important free-speech rights were at stake.

Judge Ginsburg's role in the tent city case provided a neat example of how elusive is her place on the philosophical spectrum of the Federal courts. She has supported the right to abortion but criticized the Supreme Court decision that created it; she has generally sided with the Government in criminal matters but has held it to a high standard on civil rights issues. She was a pioneering liberal litigator on women's rights but has practiced judicial restraint since President Jimmy Carter named her to the bench in 1980.

On a court that tends to divide along liberal and conservative lines, Judge Ginsburg is often in the middle.

In the tent case, for example, Judge Ginsburg stood for free speech but not as strongly as colleagues who, like her, were appointed by Democrats. The minority opinion she opposed on the appeals court was written by Judge Antonin Scalia, now the Supreme Court's leading conservative theorist.

Measured against the Supreme Court of the time, she was not as conservative as the majority but not as liberal as the most steadfast liberals, Justices Brennan and Marshall.

And who was the author of the Supreme Court majority opinion upholding the park regulations and reversing Judge Ginsburg's position? Justice Byron R. White, whom Judge Ginsburg would replace on the Court. Views Are Complex

But if the tent case provides a crisp outline of Judge Ginsburg's decidedly moderate jurisprudence, the hundreds of other cases in which she has participated, along with her speeches and academic writings, demonstrate the complexities of her views.

She has expressed a strongly favorable view of affirmative action plans that benefit minorities but has struck down some plans as too broad.

She has a well-deserved reputation as a stickler for legal detail, but she clearly believes that people should have wide access to the Federal courts, putting her on the liberal side.

Judge Ginsburg also has a more accommodating view than the current Supreme Court of how far governments should go to tolerate religious practices that conflict with the law. She is largely favorable to law enforcement on criminal matters, though her view of the death penalty is unknown.

During her 13 years on the appeals court, Judge Ginsburg often sided with the more conservative judges appointed by Presidents Ronald Reagan and George Bush. According to a computerized study of the appeals court's 1987 voting patterns, published in Legal Times, Judge Ginsburg voted more consistently with her Republican-appointed colleagues than with her fellow Democratic-appointed colleagues. For example, in 1987 cases that produced a division on the court, she voted with Judge Robert H. Bork 85 percent of the time and with Judge Patricia M. Wald 38 percent of the time.

Judge Bork, a leading conservative member of that court, was rejected for a Supreme Court seat later that year after a bruising confirmation battle. Judge Wald is one of the appeals court's staunchest liberals.

Because Judge Ginsburg was a pioneer in litigating women's rights cases before the Supreme Court, and thus a hero to liberals, she has often disappointed her former allies because of her moderation and her willingness to forge coalitions with conservatives since joining the appeals court in 1980.

Paul Gewirtz, a professor of constitutional law at Yale Law School, said her philosophy resisted easy categorization as liberal or conservative.

"Judge Ginsburg's two-sided profile as both an ardent pioneering litigator for equality rights and a disciplined and cautious judicial moderate presents an admirable image for the Supreme Court," he said.

In an era when Supreme Court confirmation hearings have become raucous battles, Judge Ginsburg's is expected to be relatively smooth. No significant opposition has developed to the judge, who goes before the Senate Judiciary Committee on July 20.

Here are some of Judge Ginsburg's positions on several hotly contested issues that are certain to come up in the Supreme Court. Abortion Right to Equality Is Paramount